Page 265 U. S. 87
2. The rule of the federal courts at law and in equity governing
the right of a plaintiff to dismiss without prejudice should obtain
in the Court of Claims. Pp.
265 U. S. 92,
265 U. S.
94.
3. A plaintiff in the Court of Claim may dismiss without
prejudice when the government has filed no counterclaim, and will
not be prejudiced, legally, by the dismissal.
Id.
4. Where a plaintiff, after dismissing its suit in the Court of
Clams, began a suit in a state court against the Shipping Board on
the same causes of action, which remained pending,
held
that the subject matter was withdrawn from the cognizance of the
Court of Claims by Jud.Code § 154, and that it could not resume its
jurisdiction by setting aside the dismissal retroactively. P.
265 U. S.
95.
5. An order of the Court of Claim attempting to reinstate a
dismissed case in plain violation of the plaintiff's right to
dismiss it, and an effect of which would be to deprive the
plaintiff of the right of trial by jury in a state court, may be
corrected by mandamus. P.
265 U. S. 96.
Writ absolute.
Rule on the Court of Claims directing it to show cause why it
should not be required by mandamus or by prohibition to restore an
order dismissing a suit, to set aside another vacating the first,
and to abstain from attempting exercise of further jurisdiction in
the case.
Page 265 U. S. 91
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a petition for a writ of mandamus directed to the Court
of Claims to restore its order of April 30, 1923, dismissing the
suit of the Skinner & Eddy Corporation against the United
States, and to set aside its order of November 28, 1923, vacating
the order of dismissal and to prohibit the court from attempting to
exercise further jurisdiction in the case. The judges of the Court
of Claims have made a response to a rule to show cause.
On June 15, 1921, the petitioner brought this suit against the
United States in the Court of Claims for $17,493,488.97. The cause
of action was based on balances alleged to be due for the
construction of certain ships, for bonuses for advanced deliveries
of others, and for extra labor, extra work and repairs on other
vessels, all for the United States. The principal part of the claim
grew out of the cancellation of two contracts between the
petitioner and the United States Emergency Fleet Corporation
"representing the United States." The largest item of the claim was
for anticipated profits on 25 vessels. On August 15, 1921, no plea,
answer, or notice of any counterclaim having been filed by the
government, a general traverse was entered by the clerk of the
court under its Rule No. 34. No further pleadings were filed and no
proceedings were had of any kind until April 11, 1923, when
petitioner filed its motion to dismiss the suit without prejudice.
The petitioner based the motion on the ground that it had begun its
suit under the Act of June 15, 1917, c. 29, 40 Stat. 182, 183, as
amended by § 2, par. c, of the Merchant Marine Act of June 5, 1920
, c. 250, 41 Stat. 989; that, as interpreted by this Court, these
acts required the claims to be first presented to the President
Page 265 U. S. 92
for him to determine the just compensation, prior to the filing
of a suit, and that, as this claim was not presented to the
President, the Court of Claims had no jurisdiction. On April 12th,
the government moved to withdraw its general traverse and for leave
to file its answer and cross-bill. The motions were argued, and on
April 30, 1923, the court made an order granting the petitioner's
motion and dismissed its petition.
On May 1, 1923, one day after the dismissal, the petitioner
filed a suit against the United States Shipping Board Emergency
Fleet Corporation in the state court of Washington at Seattle, on
substantially the same causes of action as those sued for in the
Court of Claims, but omitting certain phases of damages claimed,
for $9,129,401.14.
On June 9, 1923 at the same term of the court, the government
moved for a reargument of petitioner's motion to dismiss without
prejudice, and to allow the government to file a counterclaim. The
motion was inadvertently overruled October 22, 1923, but, upon
restoration and reargument, the order of dismissal was vacated and
leave was given to the government to file its counterclaim.
It is intimated on behalf of the government that the reason
given by the petitioner for his motion to dismiss in April, 1923,
was not a genuine one. The petitioner offers that and others.
Others are that, under the decision of this Court in
Sloan
Shipyard Corp. v. United States Shipping Board Fleet
Corporation, 258 U. S. 549, and
United States Shipping Board v. Sullivan, 261 U.
S. 146, it was doubtful whether, under the contracts
sued on, a recovery could be had against the government in the
Court of Claims; and, second, that it was doubtful whether, under
Russell Motor Co. v. United States, 261 U.
S. 514, there could be any recovery for anticipated
profits under the cancelled contracts, which was the basis for
nearly half of the claim.
We think this mandamus must be granted. At common law, a
plaintiff has an absolute right to discontinue or dismiss
Page 265 U. S. 93
his suit at any stage of the proceedings prior to verdict or
judgment, and this right has been declared to be substantial.
Barrett v. Virginian Railway Co., 250 U.
S. 473;
Confiscation
Cases, 7 Wall. 454,
74 U. S. 457;
Veazie v.
Wadleigh, 11 Pet. 55;
United States v. Norfolk
& Western Ry. Co., 118 F. 554.
It is ordinarily the undisputed right of a plaintiff to dismiss
a bill in equity before final hearing.
McGowan v. Columbia,
etc., Association, 245 U. S. 352,
245 U. S. 358.
In
Pullman's Car Co. v. Transportation Co., 171 U.
S. 138,
171 U. S. 146,
this statement of the rule in
City of Detroit v. Detroit City
Railway Co., 55 F. 569, was approved:
"It is very clear from an examination of the authorities,
English and American, that the right of a complainant to dismiss
his bill without prejudice, on payment of costs, was, of course,
except in certain cases.
Chicago & A. R. Co. v. Union
Rolling-Mill Co., 109 U. S. 702. The exception was
where a dismissal of the bill would prejudice the defendants in
some other way than by the mere prospect of being harassed and
vexed by future litigation of the same kind."
Cowham v. McNider, 261 F. 714;
Thomson-Houston
Electric Co. v. Holland, 160 F. 768;
Morton Trust Co. v.
Keith, 150 F. 606;
Pennsylvania Globe Gaslight Co. v.
Globe Gaslight Co., 121 F. 1015;
Youtsey v. Hoffman,
108 F. 699;
McCabe v. Southern Railway Co., 107 F.
213.
The right to dismiss, if it exists, is absolute. It does not
depend on the reasons which the plaintiff offers for his action.
The fact that he may not have disclosed all his reasons, or may not
have given the real one, cannot affect his right.
The usual ground for denying a complainant in equity the right
to dismiss his bill without prejudice at his own costs is that the
cause has proceeded so far that the defendant is in a position to
demand on the pleadings an
Page 265 U. S. 94
opportunity to seek affirmative relief, and he would be
prejudiced by being remitted to a separate action. Having been put
to the trouble of getting his counter-case properly pleaded and
ready, he may insist that the cause proceed to a decree.
We do not perceive in the circumstances of this case any such
ground for making an exception to the general rule as was shown in
Western Union Tel. Co. v. American Bell Tel. Co., 50 F.
662, 664, or in
City of Detroit v. Detroit City Railway
Co., 55 F. 569, or
Manufacturing Co. v. Waring, 46 F.
87, or
Electrical Co. v. Brush Co., 44 F. 602, or in
Bank v. Rose, 1 Rich.Eq. (S.C.) 294, or
Booth v.
Leycester, 1 Keen 247.
Under § 145 of the Judicial Code, the Court of Claims is given
jurisdiction to hear and determine all counterclaims on the part of
the government "against any claimant against the government in said
court." Under rule 34 of that court, notice of such counterclaim
must be filed within 60 days after the service of the petition on
the Attorney General. In this case, no such counterclaim was filed,
and a general traverse was noted by the clerk. Eighteen months
elapsed and nothing was done when the petitioner moved to dismiss
without prejudice, and then the government, without proffering any
actual counterclaim, asked for leave to file one, objecting to
dismissal. The cause was dismissed, but 6 months later it was
restored and a counterclaim filed.
The government had not, when the case was dismissed, given any
time or expense to the preparation and filing of a cross-bill or of
the evidence to sustain it. It had not taken any action in respect
to the cause which entitled it so say that it would be prejudiced
by a dismissal within the meaning of the authorities. It suddenly
was awakened by the motion to dismiss to the fact that, by 18
months' delay, it was losing a possible opportunity to litigate a
cross-claim in the Court of Claims and without a
Page 265 U. S. 95
jury. We think the same rule should obtain in the procedure of
the Court of Claims an in federal courts of law and equity in
respect to the dismissal of cases without prejudice.
But there is a special reason why the rule must be enforced in
this case. By § 154 of the Judicial Code, it is provided that:
"No person shall file or prosecute in the Court of Claims, or in
the Supreme Court on appeal therefrom, any claim for or in respect
to which he or any assignee of his has pending in any other court
any suit or process against any person who at the time when the
cause of action alleged in such suit or process arose, was, in
respect thereto, acting or professing to act, mediately or
immediately, under the authority of the United States."
The day after the dismissal of this suit in the Court of Claims,
April 30, 1923, the petitioner filed suit in a state court of
Washington for something more than $9,000,000 for the same causes
of action as those sued for in the Court of Claims, except the
claims for anticipated profits. That suit and the section of the
Code just quoted necessarily prevent the petitioner from suing on
those claims in the Court of Claims, and exclude its jurisdiction
of them, because the Fleet Corporation which is sued in the
Washington court was certainly acting or professing to act,
mediately or immediately, under the authority of the United States.
The jurisdiction of these claims by the Court of Claims, having
been parted with by the order of dismissal in April, cannot be
resumed by a retroactive order of the subsequent November, in view
of the restrictive provisions of § 154, which, by reason of the
Washington suit, intervene and apply.
Corona Coal Co. v. United
States, 263 U. S. 537.
It only remains to inquire whether this is a proper case for the
writ asked. Mandamus is an extraordinary remedial process, which is
awarded, not as a matter of
Page 265 U. S. 96
right, but in the exercise of a sound judicial discretion.
Although classed as a legal remedy, in issuing it, a court must be
largely controlled by equitable principles.
Duncan Townsite Co.
v. Lane, 245 U. S. 308,
245 U. S. 312;
Arant v. Lane, 249 U. S. 367,
249 U. S. 371.
It would be a useless waste of time and effort to enforce a trial
in the Court of Claims if we were, upon appeal, to find that the
petitioner was unjustly deprived of his substantial right to
dismiss his petition, as we should have to do for the reasons
stated. Added to this is the consideration which has been regarded
as furnishing a substantial ground for the extraordinary process of
the writ that the petitioner by a denial of his right to dismiss in
the Court of Claims will be deprived of a right of trial by jury in
the state court of Washington.
Ex parte Peterson,
253 U. S. 300,
253 U. S. 305;
Ex parte Simons, 247 U. S. 231,
247 U. S.
239.
Writ absolute.